Judge: Mel Red Recana, Case: 24STCV09098, Date: 2024-10-30 Tentative Ruling

Case Number: 24STCV09098    Hearing Date: October 30, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              October 30, 2024

Moving Party:             Defendant Wehah Farm, Inc. dba Lundberg Family Farms

Responding Party:      Plaintiff Judy Oh

Motion for Judgment on the Pleadings

The Court has considered the moving, opposition, and reply papers.

The Court GRANTS in part and DENIES in part Defendant’s motion. Plaintiff is not given leave to amend.

Background

            This case arises from Plaintiff Judy Oh (Plaintiff) purchasing a bag of a popular line of rice cakes (the rice cakes) manufactured by Defendant Wehah Farm, Inc dba Lundberg Family Farms (Defendant). Plaintiff claims that Defendant has falsely represented the quantity of product in each of the rice cakes’ package, which leads consumers to believe they are receiving more product than what is actually contained within the package. (Compl., ¶ 12.) Specifically, Plaintiff alleges that the rice cakes’ packaging contains “nonfunctional slack-fill.” “Nonfunctional slack-fill is the empty space in a package that is filled to substantially less than its capacity for reasons other than” those enumerated in the statute. (See Bus. & Prof. Code § 12606.2(c).)

            On April 10, 2024, Plaintiff Judy Oh filed a complaint against Defendant Wehah Farm, Inc dba Lundberg Family Farms, alleging causes of action for (1) common law fraud; and (2) violation of the California Consumers Legal Remedies Act.      

            On September 27, 2024, Defendant filed the instant motion for judgment on the pleadings (MJOP).

            On October 17, 2024, Plaintiff filed an opposition.   

            On October 23, 2024, Defendant filed a reply.

Legal Standard

A motion for judgment on the pleadings is the functional equivalent to a general demurrer.  (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198).  Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). Any defects must either appear on the face of the pleading, or else be taken by judicial notice.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22).  The parties’ ability to prove their respective claims is of no concern.  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.)  Though the Court must accept the allegations of the complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions, speculation, or allegations contrary to law or [judicially noticed] facts…” (Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc. (2006) 138 Cal.App.4th 1215, 1219-20). 

Meet and Confer

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)  

Here, Defendant’s counsel sent Plaintiff’s counsel a meet and confer letting setting forth the substance of the instant motion. (Altura Decl., ¶ 2.) Defendant’s counsel then received an email from Plaintiff’s counsel stating that Defendant’s meet and confer letter was reviewed and they would oppose Defendant’s motion for judgement on the pleadings. (Id. at ¶ 5.) Thus, the meet and confer requirement is met.

Discussion

            Here, Defendant seeks a judgement on the pleadings on the grounds that (1) Plaintiff fails to plausibly allege Defendant made an actionable misrepresentation or that a reasonable consumer would be misled by the product packaging in this case and therefore her Consumer Legal Remedies Act (CLRA) claim fails; (2) Plaintiff fails to allege she actually relied or justifiable relied on the size of the product packaging, given the undisputed accuracy of the product label; (3) Plaintiff lacks standing to seek injunctive relief because she does not allege she is at risk of future harm.

Whether Plaintiff has standing to pursue injunctive relief

            Defendant contends that Plaintiff lacks standing to assert a claim for injunctive relief because she is now informed about the number and weight of rice cakes, and therefore cannot be misled about that information in the future. (MJOP, page 12.) Thus, according to Defendant, Plaintiff cannot plausibly allege that she is at risk of future harm.

“[S]tanding requires that (1) the plaintiff suffered an injury in fact ... (2) the injury is fairly traceable to the challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” (Mazza v. Am. Honda Motor Co. (9th Cir. 2012) 666 F.3d 581, 594-95.)

However, courts have come to diverging conclusions as to whether plaintiffs have standing to seek injunctive relief despite their knowledge that a product’s packaging contains slack-fill. Some courts have taken the approach that a plaintiff, like the Plaintiff here, does not have standing for injunctive relief when the plaintiff is aware of the product’s representation and its misleading nature. (See Romero v. Flowers Bakeries, LLC (N.D. Cal. May 6, 2015) No. 14-CV-05189-BLF, 2015 WL 2125004, at *7; Anderson v. The Main Celestial Grp., Inc. (N.D. Cal. 2015) 87 F. Supp. 3d 1226, 1233-35; Ham v. Hain Celestial Grp., Inc. (N.D. Cal. 2014) 70 F. Supp. 3d 1188, 1196; Garrison v. Whole Foods Mkt. Grp., Inc. (N.D. Cal. June 2, 2014) No. 13-CV-05222-VC, 2014 WL 2451290, at *5; Cordes v. Boulder Brands USA, Inc. (C.D. Cal. Oct. 17, 2018) No. CV 18-6534 PSG (JCX), 2018 WL 6714323, at *4.) Specifically, these courts held that plaintiffs “who were misled by deceptive food labels lack standing for injunctive relief because there is no danger that they will be misled in the future.” (Ham, 70 F. Supp. 3d at p. 1196.)

Other courts allow plaintiffs to seek injunctive relief even with the knowledge of the package’s alleged misrepresentation. (Lanovaz v. Twinings North America, Inc. (N.D. Cal. Jan. 6, 2014) No. C-12-02646-RMW, 2014 WL 46822, at *9-* 10; Escobar v. Just Born Inc. (C.D. Cal. June 12, 2017) No. CV1701826BROPJWX, 2017 WL 5125740, at *6; Barrett v. Optimum Nutrition, No. CV 21-4398-DMG (SKX) (C.D. Cal. Jan. 12, 2022) 2022 WL 2035959, at *5.)

While there is conflicting case law surrounding whether a plaintiff in similar circumstances as Plaintiff can pursue injunctive relief, the Court concludes Plaintiff is unable to seek injunctive relief. Here, Plaintiff alleges in the complaint that “Plaintiff intends to purchase the Product in the future but cannot reasonably do so without an injunctive relief order from the Court ensuring Defendant’s packaging, labeling, and filling of the Product is accurate and lawful, at which point Plaintiff will reasonably be able to rely upon Defendant’s representations about the Product.” (Compl., ¶ 4.) Plaintiff has alleged that she could be harmed in the future if the packaging of the rice cakes continues in its current form. However, Plaintiff cannot plausibly be misled in the future because the rice cakes’ packaging displays the number of rice cakes in each package. (MJOP, page 4.)

In Cordes, the Court held that the plaintiff is unable to seek injunctive relief because the “[p]laintiff is on notice about potential underfilling, [and] he could easily determine the number of pretzels in each package before making a future purchase by simply reading the back panel, which lists the number of servings in each bag and the number of pretzels in each serving.” (Cordes, supra, 2018 WL 6714323, at *4.) In Jackson, the Court held that the plaintiff “now knows she can ascertain the amount of cereal she is buying by looking at the label, she has not shown any likelihood she will be deceived in the future.” (Jackson v. Gen. Mills, Inc. (S.D. Cal. Sept. 23, 2019) No. 18CV2634-LAB (BGS), 2019 WL 4599845, at *5.) Similarly here, Plaintiff is able to ascertain the precise number of rice cakes in the package by looking at the label. The nutrition label of the rice cakes’ packaging states that each package is about five (5) servings, and each serving is thirteen (13) rice cakes. (MJOP, page 4.) Thus, Plaintiff is on notice that the packaging contains about 65 rice cakes.

The case here is dissimilar to Davidson v. Kimberly-Clark Corp. (9^th Cir. 2018) 889 F.3d 956. There, the Court held that a plaintiff who alleged that a defendant falsely advertised its wipes as “flushable” had standing to seek injunctive relief because the plaintiff could not otherwise determine whether the wipes were flushable without opening the packages of wipes and trying to flush them. (Id. at p. 969-70.) In Barrett, the Court held that the plaintiff “cannot tell how much empty space is in the container without first purchasing the Product and opening it. As discussed above, though the Product Label discloses the net weight and number of servings, this does not necessarily provide the reasonable consumer a meaningful metric for how much powder is in the container.” (Barrett v. Optimum Nutrition, supra, 2022 WL 2035959, at *5.) Unlike the plaintiffs in Davidson and Barrett, Plaintiff here can readily determine the number of rice cakes contained in the packaging by looking at the nutritional label. Plaintiff does not need to first open the packaging to discover the contents of the rice cakes’ packaging because the nutritional label expressly states that there are about 65 rice cakes in each package.

Therefore, the Court grants Defendant’s motion with respect to the prayer for injunctive relief.

Whether the complaint alleges actionable representation

An actionable representation may be (1) “an affirmative representation,” or an omission if the omitted fact is (2) “contrary to a material representation actually made by the defendant” or (3) “is a fact the defendant was obliged to disclose.” (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1136; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (elements of common law fraud).)

Here, Plaintiff sufficiently alleges an actionable misrepresentation. Plaintiff alleges that the packaging itself misrepresents the amount of product (rice cakes) contained within that packaging. Specifically, Plaintiff alleges that “Defendant falsely represents the quantity of product in each of the Product’s opaque package. The size of each package leads reasonable consumers to believe they are purchasing a package full of product when, in reality, consumers are actually receiving significantly less than what is represented by the size of the package.”  (Compl., ¶ 12; see Escobar, supra, 2017 WL 5125740, at *11 [“Plaintiff does not admit that the box at issue lacks a false statement or misrepresentation. To the contrary, Plaintiff maintains that the size of the Products’ box itself misrepresents the amount of Product contained within the box. Plaintiff alleges that the Products’ boxes mislead consumers as to the amount of candy contained therein.”]; Costa v. Reliance Vitamin Co., Inc. (N.D. Cal. Apr. 18, 2023) 2023 WL 2989039, at *6 [“Taken together, [slack-fill allegations] [are] sufficient to plead an intentional misrepresentation claim]; Stewart v. Kodiak Cakes, LLC (S.D. Cal. 2021) 537 F. Supp. 3d 1103, 1139 [noting the plaintiff’s allegation that “the CLRA claim premised on slack fill is viable because product size is a misrepresentation.”].)

Whether a Reasonable Consumer would be misled

Plaintiff's claim under the CLRA is governed by the “reasonable consumer test.” (Williams v. Gerber Prods. Co. (9th Cir. 2008). 552 F.3d 934, 938.) Under the reasonable consumer test, Plaintiff must show that “members of the public are likely to be deceived” by slack-fill in the rice cakes’ package. (Ibid.; Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal. App. 4th 1351, 1360.) “[T]hese laws prohibit ‘not only advertising which is false, but also advertising which [,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.’” (Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939, 951 (quoting Leoni v. State Bar (1985) 39 Cal. 3d 609, 626.)

Whether the defendant's practices are deceptive is usually a question of fact that is not appropriate for determination at the motion to dismiss stage. (Williams, 552 F.3d at 938–39.) Indeed, the Ninth Circuit has made clear that granting a motion to dismiss on this question will only be appropriate in “rare situation[s].” (Id. at p. 939; Samet v. Procter & Gamble Co. (N.D. Cal. June 18, 2013) 2013 WL 3124647, at *9 [“[T]he amount of slack-fill expected by the reasonable consumer is a debatable factual question that is inappropriate to resolve at the motion to dismiss stage.”].)

Defendant contends that “an ordinary consumer acting reasonably under the circumstances would not be misled about the number of rice cakes in the Product because the number of rice cakes is indicated on the product label. An ordinary consumer would also palpate and shake the package to assess the amount of slack fill.” (MJOP, page 9.) Plaintiff alleges in the complaint that “[e]ven if consumers had a reasonable opportunity to review, prior to the point of sale, other representations of quantity, such as net weight or serving disclosures, they did not and would not have reasonably understood or expected such representations to translate to a quantity product meaningfully different from the size of the package.” (Compl., ¶ 13.) The Court finds that this is not one of the “rare situation[s]” where it is appropriate to determine at the motion for judgment on the pleadings stage whether a reasonable consumer would not be misled. Like Cordes, the Court now finds it “at least plausible that a consumer could be deceived by a package filled with [65 percent air], regardless of whether the number of [rice cakes] in the package is displayed on the ingredient list.” (Compl., ¶ 3; Cordes, supra, 2018 WL 6714323, at *7; see Izquierdo v. Mondelez Int'l, Inc. (S.D.N.Y. Oct. 26, 2016) No. 16-CV-04697 (CM), 2016 WL 6459832, at *7 [“Whether a reasonable consumer would think to shake, squeeze, or manipulate the Candy box, and whether that reasonable consumer would actually be able to feel the existence of slack-fill, are questions of fact that are inappropriate for resolution at the motion to dismiss stage.”].)  Plaintiff’s allegations on whether a reasonable consumer would be misled are sufficient to survive the instant motion.

Whether Plaintiff has alleged actual or justifiable reliance
            Defendant argues that Plaintiff has failed to plead both actual reliance and justifiable reliance because (1) she is a “tester” and (2) “no reasonable consumer would assume a package of rice cakes is full to the brim without looking at any other information on the package, such as the product label.” (MJOP, page 11.)

            Firstly, the claim that Plaintiff is a tester is immaterial to the instant motion. (Ibarra, supra, 660 F. Supp. 3d at p. 922 [“There is nothing facially implausible about [a consumer’s] dual motives—consumers are allowed to have multiple reasons behind their purchasing decisions.”]; Cordes, supra, 2018 WL 6714323, at *2 [“[W]hile Plaintiff’s allegation that he purchased the Product in part to determine whether it was lawfully filled suggests that he may have suspected that the package contained a significant amount of slack-fill, it does not demonstrate that he knew for certain about the amount of slack-fill before he purchased and opened the product.”].) Plaintiff specifically alleged that she “was genuinely interested in consuming and enjoying the product, and did so – with disappointment that the package was mostly empty.” (Compl., ¶ 17.)

            Secondly, Plaintiff's allegations give rise to an inference that she would not have purchased the Product had she known about the amount of slack-fill in advance, or, at the very least, that he would not have paid as much for it. (Compl, ¶ 4 [“Plaintiff understood the size of the package and product label to indicate that the amount of product contained therein was commensurate with the size of the package, and would not have purchased the Product, or would not have paid a price premium for the Product, had plaintiff known that the size of the package and product label were false and misleading.”]; Id. at ¶ 45 [“Defendant’s packaging of the Product was a material factor in Plaintiff’s decisions to purchase the Product. Based on Defendant’s packaging of the Product, Plaintiff reasonably believed that Plaintiff would receive more product than actually received. Had Plaintiff known the truth of the matter, Plaintiff would have not have purchased the Product.”].) These allegations are sufficient to “give rise to a plausible inference that Plaintiff relied on the slack-fill in making [her] purchase.” (Cordes, supra, 2018 WL 6714323, at *7.)

The Court therefore GRANTS Defendant’s motion only as it pertains to Plaintiff’s prayer for injunctive relief. Because Plaintiff cannot claim that Plaintiff is entitled to injunctive relief, Plaintiff is not given leave to amend. 

.The Court DENIES the rest of Defendant’s motion

It is so ordered.

Dated: October 30, 2024

_____________________

MEL RED RECANA

Judge of the Superior Court